Loyd v. McKesson Corporation

• Court: District Court, D. Arizona
• Decided: February 20, 2025
• Docket: 2:22-cv-02065
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 R Jason Loyd, et al., No. CV-22-02065-PHX-DLR

10 Plaintiffs, ORDER

11 v.

12 McKesson Corporation, et al.,

13 Defendants. 14 15 16 Defendants McKesson Corporation and McKesson Medical-Surgical Inc. 17 (collectively, “McKesson”) operate together as a global healthcare supply retailer. 18 Plaintiffs R Jason Loyd, Troy Sloneker, and Dianna Wynn are all former employees of 19 McKesson. When McKesson implemented a policy requiring employees to obtain a 20 COVID-19 vaccination (“Vaccination Protocol”), Plaintiffs each requested a religious 21 exemption from vaccination. McKesson denied the requests and later terminated Plaintiffs, 22 pursuant to the Vaccination Protocol. Plaintiffs claim that, in so doing, McKesson 23 discriminated against them in violation of Title VII of the Civil Rights Act of 1964 and the 24 Arizona Civil Rights Act (“ACRA”). Pending before the Court is McKesson’s motion for 25 summary judgment. (Doc. 96.) The motion is fully briefed.1 (Docs. 104, 106.) For the 26 27 1 Oral argument is denied because the motions are adequately briefed, and oral argument will not help the Court resolve the issues presented. See Fed. R. Civ. P. 78(b); 28 LRCiv. 7.2(f). 1 following reasons, the Court grants in part and denies in part the motion for summary 2 judgment. 3 I. Background 4 McKesson employed Plaintiffs as Account Managers. (Doc. 1 ¶ 16.) Plaintiffs each 5 sold medical products and services to healthcare providers within an assigned geographic 6 territory. (Doc. 96-2 at 9, 32; Doc. 96-4 at 45.) Plaintiffs have been with McKesson for 7 over twenty years each. (Doc. 1 ¶ 17.) The nature of their work has always been hybrid, 8 requiring both in-person meetings with customers and remote work at their home offices. 9 Loyd estimates that he spends ten to twenty percent of his time in person with customers 10 and prospective customers. (Doc. 96-2 at 12–14.) Sloneker estimates that he splits his time 11 evenly between remote and in-person work. (Id. at 34.) Wynn stated that she works from 12 home and is not in an office environment on a day-to-day basis. (Doc. 96-6 at 43.) They 13 all attended annual regional and national sales conferences in person. (Doc. 96-2 at 3; Doc. 14 104-1 at 144.) 15 When the COVID-19 pandemic struck, McKesson required its employees to work 16 remotely and prohibited in-person work and client visits. (Doc. 96-5 at 52–53.) But 17 McKesson’s approach to its pandemic policy evolved as new information about COVID-19 18 became available. In 2021, it began permitting in-person meetings with prior customer 19 approval. (Doc. 96-2 at 16, 38.) Later that year, McKesson implemented the Vaccination 20 Protocol. (Doc. 96-5 at 93–99.) The Vaccination Protocol provided that “[e]mployees who 21 enter professional health care settings as part of their role, including . . . sales 22 professionals” were to be fully vaccinated by November 15, 2021. (Id. at 93.) It further 23 provided that covered employees could apply for exemption from the vaccination 24 requirement based on sincerely held religious beliefs. (Id. at 96.) Upon receipt of a religious 25 accommodation request, McKesson stated that it would engage in the “interactive process” 26 to determine whether an employee could be accommodated or whether accommodation 27 would impose an undue hardship. (Id.) Covered, non-exempt employees who failed to 28 provide proof of vaccination by November 15, 2021 would be placed on unpaid 1 administrative leave for six weeks to give them time to provide proof of full vaccination. 2 (Id. at 94.) If such an employee did not get vaccinated during that time, McKesson would 3 terminate their employment. (Id.) 4 Plaintiffs each submitted requests, wherein they certified that they had sincerely 5 held religious beliefs. (Docs. 96-5 at 143; 96-6 at 21, 31.) Each of them indicated that 6 receiving the COVID-19 vaccination would conflict with their religious beliefs. (Docs. 96- 7 5 at 142; 96-6 at 22, 31.) In total, sixty-three employees requested religious 8 accommodations to the Vaccination Protocol; twenty-four or twenty-five of them held 9 positions like Plaintiffs’. (Doc. 104-1 at 37–38.) As part of McKesson’s “interactive 10 process,” religious accommodation seekers, including Plaintiffs, met with third-party 11 human resources (“HR”) consultants tasked with interviewing those requesting 12 accommodations and assessing the propriety of such requests. (Doc. 96-3 at 3.) The HR 13 consultants recorded accommodation seekers’ answers to various questions about the 14 nature of their religious beliefs. (Id. at 3–4.) They then supplied this information to 15 McKesson’s Employee Relations team. (Id. at 4.) 16 On its end, McKesson and its attorneys identified several “Key Considerations” 17 regarding accommodation requests for Account Managers. (Doc. 96-6 at 55.) These 18 considerations included the potential damage to McKesson’s reputation; McKesson’s 19 moral obligation to minimize possible COVID-19 exposure to its employees; McKesson’s 20 customers’ vaccination requirements; the difficulty in swapping customers among sales 21 representatives without “negative impact”; the need for in-person customer interaction; 22 potential lost business and an inability to remain competitive. (Id.) Given these 23 considerations, McKesson believed it would suffer “more than a de minimis loss in sales 24 revenues,” and it recommended denying all Account Managers’ requests for 25 accommodations. (Id.) McKesson’s Employee Relations teams reviewed all the 26 information and provided the recommendations on accommodations to Brad Hilton, Senior 27 Vice President of Primary Care Sales. (Doc. 96-3 at 4.) 28 Hilton met with several other McKesson executives to discuss the religious 1 accommodation requests. (Doc. 96-5 at 7–8.) Hilton admits that he was the final 2 decisionmaker regarding Plaintiffs’ accommodation requests. (Id. at 8–9.) Hilton and the 3 other executives assumed the accommodations would have to be made “forever.” (Doc. 4 104-1 at 145.) They discussed the possibility of swapping accounts amongst Account 5 Managers, moving Plaintiffs to “inside sales,” or using other precautionary measures for 6 unvaccinated Account Managers like masking and testing. (Doc. 96-5 at 11.) Hilton 7 explained that customer positions and policies were changing, making any possible 8 accommodation more challenging. (Id. at 13.) Hilton and the other executives decided they 9 “would not be able to service [McKesson’s] customers long term and remain competitive 10 without face-to-face sales representation,” so they ultimately decided to deny Plaintiffs’ 11 accommodation requests. (Id. at 9.) In fact, McKesson initially denied all sixty-three 12 accommodation seekers’ requests. (Doc. 104-1 at 40.) But, because of “changes in the 13 law,” eventually six Account Managers were granted an accommodation. (Id. at 39–40.) 14 In early November 2021, McKesson notified Plaintiffs that their requests were 15 denied and placed Plaintiffs on unpaid administrative leave for six weeks in accordance 16 with the Vaccination Protocol. (Id. at 159; Doc. 96-2 at 22.) Plaintiffs did not obtain 17 vaccinations by the deadline, and they were terminated. (Docs. 96-2 at 6, 52; 96-5 at 42– 18 43.) In response to their terminations, Plaintiff brought this lawsuit. Plaintiffs allege 19 identical claims under Title VII and ACRA: discrimination and retaliation. (Doc. 1 at 6– 20 9.) They advance both a disparate treatment and disparate impact theory of religious 21 discrimination. (Doc. 104 at 5, 20.) McKesson moves for summary judgment on all claims. 22 II. Legal Standard 23 Summary judgment is proper if there is no genuine dispute of material fact, and 24 viewing the facts in a light most favorable to the nonmoving party, the moving party is 25 entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A fact is material if it might 26 affect the outcome of the case, and a dispute is genuine if a reasonable jury could find for 27 the nonmoving party based on the competing evidence. Anderson v. Liberty Lobby, Inc., 28 477 U.S. 242, 248 (1986); Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th 1 Cir. 2002). Summary judgment may also be entered “against a party who fails to make a 2 showing sufficient to establish the existence of an element essential to that party's case, and 3 on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 4 U.S. 317, 322 (1986). 5 The party seeking summary judgment “bears the initial responsibility of informing 6 the district court of the basis for its motion, and identifying those portions of [the record] 7 which it believes demonstrate the absence of a genuine issue of material fact.” Id. at 323. 8 The burden then shifts to the non-movant to establish the existence of a genuine and 9 material factual dispute. Id. at 324. The non-movant “must do more than simply show that 10 there is some metaphysical doubt as to the material facts,” and instead “come forward with 11 specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. 12 v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (internal quotation and citation 13 omitted). Even where there are some factual issues raised, summary judgment is 14 appropriate if the totality of the undisputed facts is such that reasonable minds could not 15 differ on the resolution of the factual question. Chesney v. United States, 632 F. Supp. 867, 16 869 (D. Ariz. 1985). 17 III. Analysis 18 Title VII and ACRA prohibit discharging an employee because of the employee’s 19 religion. 42 U.S.C. § 2000e-2(a)(1); Ariz. Rev. Stat. Ann. (“A.R.S.”) § 41-1463(B)(1). 20 “Religion” under Title VII is defined to include “all aspects of religious observance and 21 practice, as well as belief, unless an employer demonstrates that he is unable to reasonably 22 accommodate to an employee’s . . . religious observance or practice without undue 23 hardship on the conduct of the employer’s business.” Id. § 2000e(j); see also Bolden- 24 Hardge v. Off. of Cal. State Controller, 63 F.4th 1215, 1222 (9th Cir. 2023). Title VII and 25 ACRA also prohibit the employer from retaliating in response to an employee engaging in 26 a protected activity. 42 U.S.C. § 2000e-3(a); A.R.S. § 41-1464. “The requisite degree of 27 proof necessary to establish a prima facie case for Title VII . . . claims on summary 28 judgment is minimal and does not even rise to the level of preponderance of the evidence.” 1 Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994). The plaintiff need only provide 2 evidence that “gives rise to an inference of unlawful discrimination.” Lowe v. City of 3 Monrovia, 775 F.2d 998, 1005 (9th Cir. 1985) (quotation and citation omitted). 4 Plaintiff advances two theories of liability for religious discrimination: (1) 5 discrimination by failure to accommodate and (2) disparate-impact discrimination. They 6 also bring a retaliation claim.2 (Doc. 104 at 5, 20.) McKesson moves for summary judgment 7 on all claims. The Court addresses each in turn. 8 a. There are genuine disputes of fact precluding summary judgment on 9 Plaintiffs’ failure-to-accommodate claims. 10 Plaintiffs first advance a failure-to-accommodate theory of religious 11 discrimination.3 To succeed on such a claim, a plaintiff must set forth a prima face case 12 that “(1) he had a bona fide religious belief, the practice of which conflicts with an 13 employment duty; (2) he informed his employer of the belief and conflict; and (3) the 14 employer discharged, threatened, or otherwise subjected him to an adverse employment 15 action because of his inability to fulfill the job requirement.” Peterson v. Hewlett-Packard 16 Co., 358 F.3d 599, 606 (9th Cir. 2004) (citing Heller v. EBB Auto. Co., 8 F.3d 1433, 1438 17 (9th Cir. 1993)). If a plaintiff makes a prima facie case, the burden shifts to the defendant 18 to show that it “initiated good faith efforts to accommodate reasonably the employee’s 19 religious practices or that it could not reasonably accommodate the employee without 20 undue hardship.” Tiano v. Dillard Dep’t Stores, Inc., 139 F.3d 679, 681 (9th Cir. 1998). 21 McKesson believes it is entitled to summary judgment on the failure-to-accommodate 22 theory because Plaintiffs cannot show that they hold bona fide religious beliefs. 23 Alternatively, McKesson raises the affirmative defense of undue hardship in 24 accommodating Plaintiffs.

25 2 Because ACRA and Title VII are “generally identical” and “federal Title VII case law is persuasive” in interpreting ACRA, the Court deals with the corresponding ACRA 26 and Title VII claims together throughout its analysis. Bodett v. CoxCom, Inc., 366 F.3d 736, 742 (9th Cir. 2004) (quoting Higdon v. Evergreen Int’l Airlines, 673 P.2d 907, 909– 27 10, n.3 (1983)). 3 A failure-to-accommodate theory of religious discrimination is a species of 28 disparate treatment claim. See EEOC v. Abercrombie & Fitch Stores, Inc., 575 U.S. 768, 787–88 (2015) (Thomas, J., concurring). 1 i. There are genuine disputes of fact regarding Plaintiffs’ religious 2 beliefs that preclude summary judgment. 3 A religious belief need not be consistent or rational to be protected; it need only be 4 sincerely held. Keene v. City and Cnty. of San Francisco, No. 22-16567, 2023 WL 5 3451687, at *2 (9th Cir. 2023); United States v. Ward, 989 F.2d 1015, 1018 (9th Cir. 1992). 6 Purely social, political, and economic philosophies and personal preferences are not 7 religious beliefs, but overlap between such philosophies and preferences and religious 8 beliefs does not place the belief outside the scope of Title VII’s protections. EEOC 9 Compliance Manual § 12-I(A)(1) (Jan. 15, 2021).4 And a “religious practice” is not limited 10 to “those practices which are mandated or prohibited by the tenet of the religion[.]” Heller, 11 8 F.3d at 1438 (quoting Redmond v. GAF Corp., 574 F.2d 897, 900 (7th Cir. 1978)). Indeed, 12 it is not the province of the courts to say what a religious practice or activity is. See Thomas 13 v. Review Bd. of Ind. Emp. Sec. Div., 450 U.S. 707, 714 (1981). 14 McKesson argues that Plaintiffs’ beliefs are not sincerely held based on Plaintiffs’ 15 deposition testimonies. (Doc. 96 at 8.) It is undisputed that each plaintiff’s accommodation 16 request form included a religious justification for the request and that each plaintiff 17 “certified” his or her sincerely held belief on the form. (See Doc. 104-1 at 264, 344, 429.) 18 McKesson’s objection is that Plaintiffs’ admissions during their depositions revealed that 19 their ostensibly religious objections were insincere and pretextual. 20 McKesson supports its arguments with authority from courts in the Third Circuit, 21 which employs the Africa test for bona fide beliefs. (See, e.g., Docs. 96 at 15 (citing Fallon 22 v. Mercy Cath. Med. Ctr. of Se. Penn, 877 F.3d 487 (3d Cir. 2017)); 106 at 3 (citing 23 Finkbeiner v. Geisinger Clinic, 623 F. Supp. 3d 458 (M.D. Pa. 2022); Aukamp-Corcoran 24 v. Lancaster Gen. Hosp., No. 19-5734, 2022 WL 507479 (E.D. Pa. Feb. 18, 2022)).) The 25 Africa test notably allows for significant scrutiny into the legitimacy of a religious belief 26

27 4 “Although EEOC Guidelines are not binding on the courts, they ‘constitute a body of experience and informed judgment which courts and litigants may properly resort to for 28 guidance.’” Ray v. Henderson, 217 F.3d 1234, 1243 (9th Cir. 2000) (quoting Meritor Sav. Bank v. Vinson, 477 U.S. 57, 65 (1986)). 1 system.5 The Ninth Circuit has never adopted the test, and indeed, has been much more 2 cautious in its approach to scrutinizing the validity of religious beliefs.6 The Ninth Circuit 3 has emphasized that Title VII’s protection of religious observances and practices is 4 expansive. Heller, 8 F.3d at 1438. The Court declines to transgress precedent and adopt the 5 Africa test or the reasoning of decisions employing it. 6 The Court is instead persuaded by the Seventh Circuit’s understanding of the 7 relationship between personal and religious beliefs. In Passarella v. Aspirus, Inc., the court 8 declined to draw a distinction between requests for accommodations based “primarily” on 9 religion and requests based only “minimally” on religion. 108 F.4th 1005, 1010 (7th Cir. 10 2024). Such “distinctions would prove slippery in practice and arbitrary in their 11 application.” Id. In other words, though a plaintiff’s belief may be rooted in religion and 12 social, political, economic, or personal convictions, the belief is nonetheless religious. With 13 that understanding in mind, the Court finds that there is a genuine dispute of material fact 14 as to whether Plaintiffs harbor sincerely held religious objections to the COVID-19 15 vaccination that preclude summary judgment. 16 1. Loyd 17 Loyd attached a letter to his request form describing his beliefs. Loyd believed 18 himself exempt “based on [his] deeply held religious beliefs as a follower of my Lord and 19 Savior Jesus Christ[.]” (Doc. 96-5 at 142.) He quoted several passages from the Bible and

20 5 The Third Circuit 21 has determined that, in evaluating whether a belief can be termed “religious,” as opposed to an “isolated moral teaching” 22 or a philosophical belief, a judge must determine whether it “addresses fundamental and ultimate questions having to do 23 with deep and imponderable matters,” whether it is “comprehensive in nature,” and whether it is accompanied by 24 “certain formal and external signs.” 25 Ulrich v. Lancaster Gen. Health, No. 22-4945, 2023 WL 2939585, at *4 (E.D. Pa. Apr. 13, 2023) (quoting Africa v. Pennsylvania, 662 F.2d 1025, 1032 (3d Cir. 1981)). 26 6 Similarly, cases from other Circuits that McKesson offers where trial courts scrutinized religious beliefs about the COVID-19 vaccine have since been overturned at 27 the appellate level. See, e.g., Thornton v. Ipsen Biopharms., Inc., No. 23-11171-JCB, 2023 WL 7116739 (D. Mass. Oct. 26, 2023), aff’d in part, rev’d in part, No. 23-1951, 2023 WL 28 211517 (1st Cir. Jan. 16, 2025); Passarella v. Aspirus, Inc., No. 22-cv-287-jdp, 2023 WL 2455681 (W.D. Wis. Mar. 10, 2023); rev’d & remanded, 108 F.4th 1005 (7th Cir. 2024). 1 expressed his belief that “God speaks to [him] through study of the Holy Bible and through 2 the Holy Spirit who lives in [him].” (Id.) He believes that his body is “God’s temple,” and 3 thus he is “commanded to take good care of my body, not defile it, and certainly not 4 introduce something into it that could potentially harm it.” (Id.) His letter also indicated his 5 belief that abortion is murder, and injection of vaccines developed or tested using “fetal 6 stem cell lines from aborted babies” would go against his religious beliefs. (Id.) Loyd 7 testified that he believed mRNA vaccines, including COVID-19 vaccines, would alter his 8 DNA. (Doc. 96-2 at 48–49.) Consistent with his accommodation request, he further 9 testified that he did not want to take something that was initially developed or tested using 10 fetal stem cells because he believes abortion is murder. (Id. at 21–22.) 11 McKesson cites its expert report, which explains the nature of fetal stem cell use in 12 the development and testing of COVID-19 vaccines. The expert report acknowledges that 13 fetal cell line HEK 293 “was used during the research phase for ‘proof of concept’ studies” 14 and that “[c]ells taken from two abortions in the 1960s were replicated in a laboratory to 15 produce two cell lines” that can be used repeatedly. (Doc. 96-7 at 16.) The expert thus 16 explained that the vaccine was not developed from aborted fetal cells. (Id.) The expert adds 17 that Loyd admitted to taking other medications that were developed the same way. (Id.) 18 McKesson thus asserts that Loyd’s belief is insincere or does not conflict with the 19 vaccination requirement. 20 2. Sloneker 21 Sloneker’s request stated that “God created [him] with an immune system[,] and 22 [he] will not alter [God’s] design.” (Doc. 96-6 at 22.) Sloneker later testified that his 23 “concern with the religion is the gene therapy aspect of the COVID vaccines” because he 24 believed that “gene therapy” would alter his immune system. (Doc. 96-2 at 48, 50.) 25 McKesson disputes that his belief can be sincerely held because his concern with COVID- 26 19 vaccines being “gene therapy” is a medical judgment, not a religious belief. (Doc. 96 at 27 18.) 28 1 3. Wynn 2 In Wynn’s accommodation request, she explained that “[t]he Bible teaches [her] 3 that the body is created in the image of God, the temple of the Holy Spirit, a living sacrifice 4 to the Lord.” (Id. at 31.) Thus “[d]oing anything to alter God’s design” of her immune 5 system would conflict with her religious beliefs. (Id.) Wynn later testified that she does not 6 believe “vaccines are safe or effective,” and they “have a lot of things in them I’m morally 7 objective [sic] to.” (Doc. 96-5 at 38.) She testified that she “felt like [her] son was injured 8 by a vaccine when he was younger,” which prompted her to do research into vaccines and 9 vaccine companies. (Id. at 31.) She now believes “there’s no legal liability for vaccine 10 companies,” so companies have no incentive to make them safe. (Id.) She added that she 11 does not believe in vaccines. (Id. at 39.) McKesson argues that Wynn’s deposition 12 testimony reveals her objections to the vaccine are not religious. 13 4. Decision as to All Plaintiffs 14 In each instance, McKesson asks the Court to weigh evidence and make credibility 15 determinations. That Plaintiffs’ initial accommodation requests and later deposition 16 testimonies may conflict does not prove, as a matter of law, that their religious beliefs are 17 insincere. See Thomas¸ 450 U.S. at 714 (“[R]eligious beliefs need not be acceptable, 18 logical, consistent, or comprehensible to others in order to merit First Amendment 19 protection.”). And the fact that Plaintiffs’ depositions may indicate that their beliefs about 20 COVID-19 vaccines were not entirely religious does not mean their beliefs were not 21 religious at all. The issues McKesson raises are properly for the trier of fact. 22 ii. McKesson fails to demonstrate that it is entitled to judgment as a 23 matter of law on its undue hardship defense. 24 If an employee can make out a prima facie case of religious discrimination, the 25 employer can still avoid liability if it can show that accommodating the employee would 26 have imposed an undue hardship. Heller, 8 F.3d at 1440. “Undue hardship is an affirmative 27 defense[.]” Bolden-Hardge, 63 F.4th at 1224. Historically, anything more than a “de 28 minimis cost” was considered an “undue hardship.” But in 2023, the Supreme Court 1 clarified that the “de minimis cost” test is incorrect. Groff v. DeJoy, 600 U.S. 447, 470 2 (2023). Instead, “an employer must show that the burden of granting an accommodation 3 would result in substantial increased costs in relation to the conduct of its particular 4 business.” Id. 5 Whether an accommodation imposes an undue hardship depends on “all relevant 6 factors in the case at hand, including the particular accommodations at issue and their 7 practical impact in light of the nature, size and operating cost of an employer.” Id. (internal 8 quotation marks omitted). Employers cannot consider non-economic costs to coworkers 9 that are based on employee animosity towards a religion. Id. Moreover, “Title VII requires 10 that an employer reasonably accommodate an employee’s practice of religion, not merely 11 that it assess the reasonableness of a particular possible accommodation or 12 accommodations.” Id. at 473. 13 McKesson asserts that “[t]he nature of Plaintiffs’ job required in-person contact with 14 customers to maintain robust relationships, to develop new clients, and to maintain 15 McKesson’s advantage in the marketplace.” (Doc. 96 at 22.) Thus, it concluded that it 16 could not allow Plaintiffs to work completely remotely indefinitely, and it had to consider 17 other options to accommodate Plaintiffs’ religious beliefs. Specifically, McKesson 18 considered whether swapping accounts would be a feasible accommodation, but it 19 concluded that doing so would be “administratively burdensome” and would “significantly 20 impact their peers (who were paid on commissions), by requiring them to take on new 21 customer accounts and give up existing accounts[.]” (Doc. 96 at 10.) 22 EEOC Guidelines counsel that the administrative costs are not unduly burdensome, 23 so the Court does not consider those in its assessment. See Groff, 600 U.S. at 466 (The 24 EEOC “has specifically cautioned . . . against extending the phrase to cover such things as 25 the ‘administrative costs’ in reworking schedules[.]”). The effect of the accommodation on 26 Plaintiffs’ colleagues, however, could impose an undue hardship. But the record does not 27 compel that conclusion that it did. In fact, it is not clear that account swapping would have 28 been necessary. 1 When deposed, McKesson admitted that it does swap accounts amongst sales 2 representatives in the ordinary course of business (and indeed, upon customer request). 3 (Doc 104-1 at 167–68, 247–48.) It further admitted that no one consulted any of Plaintiffs’ 4 customers to determine whether those customers would continue working with Plaintiffs 5 despite their vaccination status. (Id. at 154.) McKesson did not know whether any of 6 Plaintiffs’ customers had a vaccination requirement themselves, nor could Hilton recall 7 which of McKesson’s customers were demanding to return to face-to-face meetings. (Id. 8 at 161.) McKesson admitted that even vaccinated Account Managers were not required to 9 visit customers in person, cutting against the claim that in-person contact was necessary. 10 (Id. at 216.) 11 Moreover, there is no evidence that McKesson asked other Account Managers 12 whether they would voluntarily swap accounts, which is generally considered an 13 accommodation that can be achieved without undue hardship. See 29 C.F.R. § 14 1605.2(d)(1)(i); see also Groff, 600 U.S. at 473 (holding that consideration of voluntary 15 shift swapping is necessary in certain circumstances). Loyd and Sloneker’s direct 16 supervisor testified that account managers appreciated receiving additional, new accounts 17 and suggested that voluntary offers of new business were received positively. (Doc. 104-1 18 at 248.) 19 There is a question of fact as to whether McKesson “reasonably accommodate[d]” 20 Plaintiffs’ practice of religion or whether it “assess[ed] the reasonableness of a particular 21 possible accommodation or accommodations.” Groff, 600 U.S. at 473. McKesson has not 22 demonstrated that it is entitled to summary judgment on the ground that accommodating 23 Plaintiffs would have resulted in an undue hardship. 24 b. McKesson is entitled to summary judgment on Plaintiffs’ disparate 25 impact claims because Plaintiffs fail to make a prima facie case. 26 Plaintiffs also advance a disparate impact theory of religious discrimination. To 27 succeed on a disparate impact claim, a plaintiff must demonstrate “that a facially neutral 28 employment practice has a significantly discriminatory impact upon a group protected by 1 Title VII.” Paige v. California, 291 F.3d 1141, 144 (9th Cir. 2002). Plaintiffs fail to 2 demonstrate that the policy had a significantly discriminatory impact on a group protected 3 by Title VII. McKesson and Plaintiffs basically agree that the “group” here is those 4 employees who sought a religious accommodation to the Vaccination Protocol. (See Docs. 5 96 at 23; 104 at 21–22.) A particular religious group is a protected class. The group of 6 accommodation seekers (albeit seeking an accommodation for religious reasons) is not. 7 Even assuming that the group of accommodation seekers were members of a single 8 religious group, Plaintiffs provide no statistical evidence demonstrating disparate impact. 9 “Statistical evidence is used to demonstrate how a particular employment practice causes 10 a protected minority group to be under represented in a specific area of employment (for 11 example, hiring or promotion).” Id. “Statistical evidence must be sufficient to show that 12 the questioned practice caused the [disparate impact] because of membership in a protected 13 class. The statistical disparities must be sufficiently substantial to raise an inference of 14 causation.” Tucker v. Reno, 205 F. Supp. 2d 1169, 1174 (D. Or. 2002). “Summary 15 judgment is appropriate when statistics do not support a disparate impact analysis.” 16 Pottenger v. Potlach Corp., 329 F.3d 740, 749 (9th Cir. 2003). 17 Here, Plaintiffs’ attorney merely included several calculations in his brief that he 18 asserts demonstrate a statistical significance. Though Rule 56 requires only that the 19 substance of the proffered evidence be admissible, the burden is on the proponent of that 20 evidence to show that it can be presented at trial in a way that would be admissible. Fed. 21 R. Civ. P. 56(c)(2); see Enriquez v. Gemini Motor Transp. LP, No. CV-19-04759-PHX- 22 GMS, 2021 WL 5908208, at *3 (D. Ariz. Dec. 14, 2021). Plaintiffs’ attorney cannot testify. 23 Ariz. R. Sup. Ct. ER 3.7. Plaintiffs have not certified an expert to offer statistical evidence, 24 nor have they attempted to provide any information on how the statistical data could be 25 offered in a way that would be admissible at trial. See Fed. R. Evid. 702. An attorney’s 26 calculations based on an improper sample are not evidence demonstrating a disparate 27 impact. 28 Because Plaintiffs fail to make a prima facie showing of disparate impact, the Court 1 need not consider whether McKesson has established a business necessity defense. The 2 Court grants McKesson summary judgment on Plaintiffs’ disparate impact claims. 3 c. Retaliation 4 To make a prima facie case for Title VII retaliation, a plaintiff must establish that 5 (1) he or she engaged in protected activity; (2) the employer subjected them to an adverse 6 employment action; and (3) the plaintiff’s protected activity caused the adverse 7 employment action. Ray v Henderson, 217 F.3d 1234, 1240 (9th Cir. 2000). If the plaintiff 8 makes a prima facie case, the defendant may rebut it by articulating a legitimate, non- 9 retaliatory motive for the action. Weil v. Citizens Telecom Servs. Co., 922 F.3d 993, 1002 10 (9th Cir. 2019). The plaintiff then bears the ultimate burden of demonstrating that the 11 defendant’s proffered reason was a pretext for retaliation. Univ. of Tex. Sw. Med. Ctr. v. 12 Nassar, 570 U.S. 338, 362 (2013). 13 Plaintiffs have not made out a prima facie case of retaliation. Though they engaged 14 in a protected activity when they made their accommodation requests, they have not raised 15 a genuine dispute as to whether they were terminated because of their requests. As 16 McKesson points out, its Vaccination Protocol was put in place before Plaintiffs requested 17 accommodations, and Plaintiffs were terminated purely for their failure to comply with it. 18 (Doc. 96 at 24.) There is thus no causal connection between the protected activity (making 19 accommodation requests) and the termination. This decision is in line with other courts in 20 the Ninth Circuit. See, e.g., Lundstrom v. Contra Costa Health Servs., No. 22-cv-06227, 21 2022 WL 17330842, at *6 (N.D. Cal. Nov. 29, 2022); O’Hailpin v. Hawaiian Airlines, 22 Inc., 583 F. Supp. 3d 1294, 1311 (D. Haw. 2022). 23 IV. Conclusion 24 For the foregoing reasons, the Court grants summary judgment in McKesson’s favor 25 on the disparate impact and retaliation claims. Plaintiffs may proceed on their failure-to- 26 accommodate claims. 27 IT IS ORDERED that McKesson’s motion for summary judgment (Doc. 96) is 28 GRANTED in part and DENIED in part as stated herein. 1 IT IS FURTHER ORDERED that the parties shall appear for a telephonic trial 2|| scheduling conference on March 25, 2025, at 9:30 a.m. Call-in instructions will be || provided to the parties via separate email. 4 Dated this 20th day of February, 2025. 5 6 (boy tha 9 Son United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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